Diana Rehnquist and the Supremes ruled yesterday that a couple of former spies who sued the CIA ? not necessarily for back pay or an outright cash settlement, but for a hearing of their case ? were, if you’ll pardon the legalese, “Shit outta luck.”
By a vote of 9 to 0, the court dismissed a lawsuit by two former Soviet bloc diplomats who said the CIA induced them to betray their countries during the Cold War in return for a pledge of resettlement in the United States and a lifetime income — then refused to live up to the deal without so much as a hearing after the U.S.-Soviet conflict ended.
Writing for the court, Chief Justice William H. Rehnquist said the applicable rule had been laid down in 1876, when the court threw out a suit by a former Union spy seeking his promised pay from the federal government. In that case, the court held that a suit to enforce an espionage contract is inconsistent with the mutual pledge of secrecy that forms a central condition of any such arrangement.
The decision was a victory for the Bush administration, which had argued that anti-terrorism efforts could be hampered if case officers attempting to recruit intelligence sources had to worry about being sued every time they tried to cut a deal with a would-be spy or defector.
Admittedly, trying to verify any of the facts in a case like this ? one in which nearly everyone involved very likely needs to keep their identity a secret, and in which most of the particulars of the case are probably still classified ? would be pretty much impossible.
But John and Jane Doe weren’t asking for a public trial, they were asking for a review of their case by the CIA, which, if I’m not mistaken, is at least sort of skilled when it comes to keeping things under wraps. Further:
It reversed a decision by the U.S. Court of Appeals for the 9th Circuit, which had ruled in 2003 that the two former diplomats, a married couple who sued as John and Jane Doe, should be allowed to proceed because they sought not merely to get paid but to enforce a constitutional right to a fair hearing. The government’s interests could be protected by conducting all or part of the case behind closed doors, the 9th Circuit said.
But yesterday, the Supreme Court said that the 9th Circuit was “quite wrong” and that the 1876 ruling, Totten v. United States, was a broad one, intended to forbid all claims against the government stemming from clandestine espionage agreements.
As for the possibility that leaks could be prevented by conducting a lawsuit in secret, or permitting the government to invoke a state-secrets privilege to prevent the disclosure of national security information, Rehnquist wrote that such measures “simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. … The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable.”
Clearly it’d be possible to separate a classified review of their case from a public hearing, but Rehnquist (and apparently the rest of the court) seems flatly opposed to this.
Look: The business of spying is obviously rife with deception. But this case seems to be much more about government agents (in this case, the ones who promised the Does a lifetime annual stipend) being held accountable for their promises as it is about the actual particulars of spying.
Maybe it’s just my own knee-jerk reaction to the phrase, “The decision was a victory for the Bush administration,” but this certainly seems like an extension of the gleeful lack of accountability they seem to practice ? think abu Ghraib and/or the spiraling deficit ? while preaching the opposite ? see the pending bankruptcy “reforms,” a grotesque giveaway to consumer lenders and a simultaneous punch in the kidneys to indebted consumers themselves. Four more years, ladies and gentlemen.